Is Indiana Protecting Discrimination?

A calm look at Indiana’s new Religious Freedom Restoration Act and its precedents.

Last week, Governor Mike Pence of Indiana signed into law the Indiana Religious Freedom Restoration Act (RFRA). Almost immediately, an uproar ensued, claiming that the law was discriminatory — that it provided a license for businesses to discriminate against gay and lesbian customers. Entirely lost in this kerfuffle has been the simple fact that the Indiana law is modeled on the 1993 federal law of the same name, and that counterparts have been adopted in 19 other states. Further, four federal courts of appeals and the Obama Justice Department have all taken the position that RFRA can be used as a defense in private suits involving the enforcement of laws that substantially burden free exercise of religion. Important debates over the intersection of faith and equality are impaired when they are overtaken by misguided rhetoric, rather than being informed by the history and context of how our legal system has treated this issue.

Alfred Smith ingested peyote — a powerful hallucinogen — in the course of his Native American religious ceremonies. Smith was terminated by his employer due to the Peyote ritual. Smith challenged the subsequent denial of unemployment benefits — based on the drug use — as a violation of the First Amendment’s Free Exercise Clause. In a controversial decision by Justice Antonin Scalia in Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause could not be raised as a defense against a law of general applicability. This opinion generated an immediate backlash: How could a person be punished for exercising his sincerely held religious beliefs? In 1993, then-Representative Charles Schumer of New York introduced the Religious Freedom Restoration Act in the House of Representatives. Its counterpart bill in the Senate was co-sponsored by Senator Edward Kennedy. The bill enjoyed such wide-ranging bipartisan support that it passed the House on a voice vote, passed the Senate by a vote of 97 to 3, and was promptly signed into law by President Clinton. (Imagine such a significant law passing today with this kind of vote!)

The law states that the federal “Government shall not substantially burden a person’s exercise of religion” unless it “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” At a minimum, RFRA attempted to reverse the Court’s construction of the Free Exercise clause in the Smith case. The scope of RFRA was clarified last year by the Supreme Court in Burwell v. Hobby Lobby. The High Court found that the federal government could not mandate that Hobby Lobby offer its employees health insurance that would pay for certain emergency contraceptives. Unresolved by that decision, however, was whether the RFRA defense applies in private suits, not involving the government. The relief provision of RFRA provides that “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” The use of the passive voice — “whose religious exercise has been burdened” — elides who is imposing the burden: the government, or private parties enforcing federal law. This language can be read two ways: first, RFRA can be asserted only to “obtain appropriate relief against” the government; second, RFRA can be raised as a “defense” whenever “religious exercise has been burdened” in any “judicial proceeding,” whether against the government, or a private party.

This provision has caused a split among the federal courts of appeals. The majority of circuits that have confronted this issue have held that the language allows a defendant to assert RFRA as a “defense” in a private cause of action not involving the government. Even though the suit is brought by a private party, the argument goes, the “religious exercise” is still being burdened through the enforcement of a federal law in “a judicial proceeding.” As Shruti Chaganti explained in a 2013 article in the Virginia Law Review, the Second, Eighth, Ninth, and D.C. Circuit Court of Appeals — which Chaganti dubbed the “defense circuits” — have allowed RFRA to be raised as a defense in a private suit, “finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.”

In 1996 — three years after RFRA was enacted — the D.C. Circuit held that the Catholic University of America could raise RFRA as a defense against a sex-discrimination claim brought by a nun and the Equal Employment Opportunity Commission alike. In 1998, the Eighth Circuit Court of Appeals found that a church could assert RFRA as a defense against a trustee in bankruptcy proceedings. In a 2000 decision by the Ninth Circuit Court of Appeals, one church sued another church for unlawfully using materials copyrighted by its late pastor. The court allowed the infringing church to raise the defense, but found that the application of the copyright law did not impose a “substantial burden” on its exercise of religion. In a 2005 decision by the Second Circuit Court of Appeals, a priest was forced into retirement by the New York Methodist Church when he turned 70. The priest brought an age-discrimination claim, and the church countered that enforcing the law would burden its free exercise. The Second Circuit found that “RFRA’s language surely seems broad enough to encompass” the church’s raising RFRA as a defense against the age-discrimination claim. In short, Judge Ralph Winter wrote, RFRA “easily covers” the church’s claim that applying the anti-discrimination law would “substantially burden” its exercise of religion. These four cases, and many others, concerned similar facts — private parties had brought suits against corporations. (Yes, Catholic University and Catholic churches are corporations.) In each case, the corporate defendants were allowed to raise RFRA as a defense to assert that the enforcement of a federal law — Title VII’s prohibition against discrimination, bankruptcy law, and even copyright law — would burden their free exercise of religion. In some cases, the defenses were successful, and in others they were not. But this is the rule of law in the states under the jurisdiction of these four circuits — nearly half the states in the union. Until recently, this was not particularly controversial. But not all judges agree. Taking the opposing view was then–Circuit Judge Sonia Sotomayor — now a Supreme Court justice — who dissented in the Methodist Church case. She found that RFRA “does not apply to disputes between private parties.” Judge Winter responded forcefully to Sotomayor’s suggestion: “The [dissent’s] narrowing interpretation — permitting the assertion of RFRA as a defense only when relief is also sought against a governmental party — involves a convoluted drawing of a hardly inevitable negative implication. If such a limitation was intended, Congress chose a most awkward way of inserting it.”

Joining Judge’s Sotomayor’s dissenting view, however, are the Sixth and Seventh Circuit Courts of Appeals. Chaganti dubs these courts the “non-defense circuits,” as they have held that RFRA was meant to “provide a defense only when obtaining appropriate relief against a government and therefore cannot apply to suits in which the government is not a party.” In 2010, the Sixth Circuit Court found that the “Creation Seventh Day Adventist Church” could not raise RFRA as a defense in a trademark infringement suit brought by the “Seventh-Day Adventist Church.” In 2006, the ubiquitous Judge Richard Posner weighed in on this issue for the Seventh Circuit. In an age-discrimination claim brought by a organist against the Catholic Diocese of Peoria, Posner wrote that “RFRA is applicable only to suits to which the government is a party.” The Supreme Court in 2012 unanimously and expressly reversed Posner’s opinion on other grounds in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, finding that the so-called “ministerial exception” to the Free Exercise clause could be raised as an “affirmative defense.” Judge Posner’s RFRA analysis was premised, in part, on the fact that since the Free Exercise Clause does not offer the “ministerial exception” as an affirmative defense, it was “hardly to be imagined” that Congress gave “greater protection to religious autonomy than RFRA does.”

Since this predicate of Posner’s ruling was invalidated by the Court, the sustained validity of Judge Posner’s ruling is questionable. Joining the Second, Eighth, Ninth, and D.C. Circuits in finding that RFRA can be asserted as a defense in a private cause of action is the Holder Justice Department. In August of 2012, the United States Government stated that Wheaton College, if sued by an employee for failing to provide insurance that covered contraceptives, “in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates” RFRA.

Yes, you read that right. The Obama Administration held that a corporation, albeit a non-profit one, could defend itself against a private claim from an employee by asserting that the Obamacare’s contraception mandate imposes a “substantial burden” on its free exercise of religion. That is to say, the most controversial aspect of the new Indiana religious-freedom law was blessed by Attorney General Eric Holder’s Justice Department. This position is directly at odds with the views of Sotomayor, Posner, and others. Again, none of this was particularly controversial until fairly recently. Since the enactment of the federal RFRA in 1993, 19 states — including Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico, Pennsylvania, Rhode Island, and South Carolina — implemented their own RFRAs, which were very similar to the federal law.

The state courts, like the federal courts, have wrestled over whether state RFRAs can be raised as a defense in private suits. Most notable among these decisions is the New Mexico Supreme Court’s opinion in Elane Photography v. Willock. In this now-famous case, a photographer was fined for refusing to photograph a same-sex wedding. The Land of Enchantment’s High Court, mirroring Sotomayor’s and Posner’s narrow reading, concluded that the photographer could not raise the state RFRA as a defense against the discrimination claim. (The Supreme Court of the United States declined to review this case).

This brings us back to the Hoosier State. Section 9 of Indiana’s RFRA provides that “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” In the wake of Elane Photography, Indiana made explicit for its own law what the four federal courts of appeals and the Obama Justice Department had already recognized about the federal counterpart. Indiana’s RFRA does no more than codify that the private enforcement of public laws — such as discrimination claims — can be defended if there is a substantial burden on free exercise of religion. That’s it. And again, until recently, this provision was not particularly controversial.

I must stress — and this point has been totally lost in the Indiana debate — that RFRA does not provide immunity to discrimination claims. It only allows a defendant to raise a defense, which a finder of fact must consider, as in any other defense that can be raised under Title VII or the Americans with Disabilities Act. Yes, believe it or not, under employment-discrimination laws, the courts have long recognized that there are legitimate defenses to treating people differently based on protected statuses. In the Supreme Court’s decision in Hosanna-Tabor, mentioned earlier, the Court unanimously found that an employee terminated because of a disability could not sue the church, because of the Free Exercise clause. This may not seem fair or equitable, but this 9–0 decision by the Supreme Court was a recognition of clearly established principles of how religious beliefs can, in rare cases, provide a defense against discrimination claims. University of Virginia law professor Douglas Laycock, an expert in free-exercise law, stated the issue well: “The hysteria over this law is so unjustified. It’s not about discriminating against gays in general or across the board. It’s about not being involved in a ceremony that you believe is inherently religious.”

Like the First Amendment, RFRA is not a blank check for bigotry. In summary, four Courts of Appeals, covering nearly half the states in the Union, and the Obama Justice Department, have stated that RFRA can be asserted as a defense in a private case seeking the enforcement of federal law. As Indiana University law professor Daniel Conkle, a supporter of same-sex marriage, explained, “The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.”

In this sense, the Indiana law would operate as does its federal counterpart. None of this is to say whether allowing RFRA to be raised as a defense in private suits is a good or bad policy. Rather, the moral outrage and proposed boycotts over Indiana’s law reflect an inexcusable failure to put into context how these laws have developed over the last two decades. Public-policy decisions, even those involving the most controversial issues of social justice, should be made on the basis of reasoned debate, rather than inflamed diatribes.

Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare. He blogs at JoshBlackman.com.